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Stickovich v. City of Cleveland8/2/2001
e case at bar had not lost their intentional tort claims against their employer for lack of proof. It would be wrong to conclude that there are no facts that would suggest intentional tort liability could be imposed against ICC, their employer, and the named insured in the case at bar.
To the contrary, the record in the case at bar shows that ICC was found by the Industrial Commission to have violated specific safety regulations in O.A.C. 4121:1-3-07, which prohibited it from operating the crane as it did in close proximity to overhead electric wires. Not only does directing the operation of an uninsulated crane by an unlicensed operator who had been drinking alcohol in violation of these regulations create a substantial certainty of injury , but the VSSR award was made precisely because such violation by ICC was the proximate cause of the employee's injury. See e.g., State ex rel. Newman v. Industrial Comm'n (1997), 77 Ohio St.3d 271. The crane rental company alleged negligence by ICC in the case at bar and recovered for damage to its crane.
The insurance contract in the case at bar defines coverage in terms of causation and grants coverage with respect to liability arising out of `[ICC's] work.' Zavarella asserted that, under the unique circumstances of that case, there were no ambiguities regarding the additional insured's own negligence or proximate cause. Because it stated no facts concerning how the injury occurred, unlike virtually every other case applying R.C. 2305.31, it is impossible to disagree with these assertions. It would require going beyond Zavarella, however, to invalidate coverage despite all these differences merely because an allegation of negligence was made against Cleveland.
By its own terms, R.C. 2305.31 prohibits only construction indemnity agreements that indemnify against liability for damages arising out of bodily injury to persons or damage to property initiated or proximately caused by or resulting from the negligence of the promisee. The case at bar does not literally involve indemnity. Moreover, the VSSR award and other evidence shows that proximate cause was ICC's violation of the O.A.C. safety requirements. The case at bar does not fall literally within the scope of R.C. 2305.31 and is not tantamount to such a case. One can reach such a conclusion only by ignoring basic distinctions and the facts of the case.
The Ohio Supreme Court has recently recognized the distinction between construction indemnity agreements and insurance contracts, a distinction which Zavarella failed to make by misapplying Kendall. Kemmeter v. McDaniel Backhoe Serv. (2000), 89 Ohio St.3d 409. After reciting the syllabus of Kendall and the policy it embodies, the Kemmeter Court stated: The statute [R.C. 2305.31] voids contract terms where a promisee attempts to shift responsibility for its negligence to the promisor. Id. at 411. In the case of liability insurance contracts, however, the risk is transferred to the commercial liability insurer rather than the contractor-promisor and does not violate R.C. 2305.31.
Moreover, even in the context of indemnity agreements, Kemmeter held that indemnity agreements in favor of the general contractor are not barred if the accident arose out of activities under the contractual control of the subcontractor. Id. at 413. To the extent that Kemmeter applies beyond its own terms to liability insurance contracts, as distinguished from such construction indemnity agreements, it supports the result reached by the trial court. The record in the case at bar shows that the workers' injuries arose out of ICC's selection, staffing, and operation of the crane, which activities were under its exclusive contractual control.
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